As AG Ken Paxton fights judge, can Texas foster kids go two years without her remedies?

AUSTIN — Texas shouldn’t have to obey a federal judge’s recent edict on foster care because she misapplied the law and is about to "irreparably harm" the system with about 100 misguided directives, state Attorney General Ken Paxton has argued.

But lawyers for 10,700 children in long-term foster care, responding to Paxton in a brief filed with the 5th U.S. Circuit Court of Appeals late Monday, said kids are harmed every day because of "deliberate indifference" by the state.

Even though Texas leaders know that their underfunded, chaotic system poses "serious risks" to children, they refuse to correct structural flaws such as not having enough Child Protective Services caseworkers and child care licensing investigators and inspectors, plaintiffs’ lawyers wrote.

They are trying to persuade the federal appellate judges to lift a stay of U.S. District Judge Janis Graham Jack’s remedial order in a long-running class-action suit originally brought by the New York-based group Children’s Rights.

The 5th Circuit, which sits in New Orleans, granted the stay. It has scheduled oral arguments for Feb. 15 on whether the stay should be lifted, modified or remain in effect while Paxton appeals Jack’s decisions. Texas Solicitor General Scott Keller will argue the state’s appeal, which could drag on for at least 12 months to 18 months. The stay decision could provide hints as to how the appeals court might rule later.

At stake is whether Texas for another two years can ignore Jack and her far-ranging set of demands and continue to repair the system as state GOP leaders see fit — and are willing to pay for.

Earlier this month, Jack said that while many recent actions by Gov. Greg Abbott and lawmakers to improve CPS and foster care "are indeed admirable," they didn’t erase violations of the children’s "substantive due process" right under the 14th Amendment to be free from unreasonable risk of harm.

In two briefs filed within hours after Jack issued her final order on Jan. 19, Paxton and Keller said plaintiffs’ lawyers "cherry-picked" a dozen children who’d suffered badly in foster care. Jack incorrectly declared the 12 youths to be representative of all kids who are in the state’s "permanent managing conservatorship," based on anecdotal evidence, the state lawyers argued.

Not "conscience-shocking"

In holding the state liable for running an unconstitutionally unsafe system, Jack used a standard akin to negligence when she should have used a much higher one, they said.

"For class-wide harm, plaintiffs had to show conscience-shocking, deliberate indifference to a substantial risk of serious harm as to all … foster children," Paxton and Keller wrote in requesting a stay. "They came nowhere close."

Compliance with Jack’s remedial order would cost the state at least scores of millions of dollars, state lawyers said. They did not put a specific price tag on the nearly 100 remedies. In a filing with Jack, though, they said just one — establishing an integrated computer system to track foster children — would cost the state and health care providers $121 million over five years.

Jack’s edict also would disrupt more than 50 children’s lives by requiring them to be immediately moved from group homes to new placements, Paxton and Keller said.

Plaintiffs’ lawyer Paul Yetter of Houston and several of his colleagues from Texas and New York, though, said blame rests with the state for not fixing foster group homes. Last March, 16 months after Jack ordered they must have an awake adult present at all times, her special masters visited eight of the group homes and found "only one even had a workable plan for 24-hour supervision," the plaintiffs’ lawyers wrote.

They noted that Jack wants leaders of two state agencies who, along with Abbott, are defendants — Henry "Hank" Whitman of the Department of Family and Protective Services and Charles Smith of the Health and Human Services Commission — to reduce caseloads of some state workers who make crucial decisions about foster children.

The judge’s final order would prod Whitman and Smith to try to hire and retain more of the CPS workers who keep tabs on foster children, investigators who look into their allegations of mistreatment and inspectors who regulate foster home quality.

Even if the 5th Circuit peels back those particular demands by Jack, the state will not have suffered "irreparable harm," plaintiffs’ lawyers wrote. It merely could reduce some of the extra spending, they said.

The plaintiffs’ lawyers noted that Jack has followed guideposts set out in Ruiz vs. Estelle, the landmark lawsuit over conditions in Texas prisons that began in the 1970s and spanned two more decades. There’s a difference between ordering new buildings, such as prisons, which would be costly and irreversible, and simply hiring more employees, such as guards or CPS workers, the plaintiffs’ lawyers argued. Employees can be let go, they noted.

Investigating maltreatment

One of the two sides’ sharpest exchanges in their latest filings was over past performance by Residential Child Care Licensing, a division the Legislature last year broke up and parceled out between Whitman’s agency, where it had been, and Smith’s mega-agency.

Paxton and Keller said Jack garbled the data in finding "faulty investigations" by the division of alleged abuse and neglect of foster children. She misread a 5-year-old internal study that challenged 84 of 111 decisions by investigators that they were unable to determine if maltreatment occurred, state lawyers argued. The department found that on 76 of those occasions, Licensing’s investigators should have "affirmatively ruled out" any abuse or neglect, they said.

Yetter, Sara Bartosz of Children’s Rights and Marcia Robinson Lowry of A Better Childhood, though, said Jack was right to consider the error rate "staggering" and a sign children aren’t protected.

"DFPS kept the investigation-error rate secret from its board," they wrote.

Embarrassed, the department stopped looking at the quality of investigations, they said. For instance, it never reviewed another entire category of decisions — allegations "ruled out" — even though that might have revealed "scores of other faulty investigations," they said.

While Abbott has joined Paxton in criticizing Jack’s orders, two leading child advocacy groups have urged the state to reconsider its strategy.

TexProtects-Champions for Safe Children has urged the state "to stop litigating." On Monday, Texans Care for Children’s Kate Murphy wrote in her blog that foster kids’ needs are so urgent, the state "should take action now rather than waiting for a resolution in the courts."